Maggio v. Florida Dept. of Labor and Employment
| Decision Date | 19 July 1999 |
| Docket Number | No. 98-2473-CIV-T-17B.,98-2473-CIV-T-17B. |
| Citation | 56 F.Supp.2d 1370 |
| Parties | Janet MAGGIO, Plaintiff, v. The STATE OF FLORIDA, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, et al., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
John Wilbur Bakas, Jr., Law Office of John W. Bakas, Jr., Tampa, FL, for Janet Maggio, plaintiff.
Danielle R. May, Jennifer M. Fowler, Zinober & McCrea, P.A., Tampa, FL, J.C. Miller, Office of General Counsel, Tallahassee, FL, for State of Florida Dept. of Labor & Employment Security, Cathy Sipple, Yolanda Dennis, Joyce McKenzie, Isabell Davis, Jerry Singletary, Renee Benton, defendants.
ORDER ON DEFENDANTS' MOTIONS TO DISMISS
This cause comes before the Court on the following:
1. Defendants' motion to dismiss (Docket No. 3) and Plaintiff's response (Docket No. 5); and
2. Defendants' supplement to their motion to dismiss (Docket No. 7), to which Plaintiff has made no response.
Plaintiff's complaint should not be dismissed under Rule 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Court must also accept the plaintiffs well-pleaded facts as true and construe the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In deciding a motion to dismiss, a court can examine only the four corners of the complaint. Rickman v. Precisionaire, Inc., 902 F.Supp. 232 (M.D.Fla.1995). The threshold of sufficiency that a complaint must meet to survive a motion to dismiss is exceedingly low. Ancata v. Prison Health Servs., 769 F.2d 700, 703 (11th Cir.1985). However, when, on the basis of a dispositive issue of law, no construction of the factual allegations of a complaint will support the cause of action, dismissal of the complaint is appropriate. Powell v. United States, 945 F.2d 374 (11th Cir. 1991); Executive 100, Inc. v. Martin County, 922 F.2d 1536 (11th Cir.1991).
The facts as stated are taken from the complaint (Docket No. 1). Plaintiff Janet Maggio was a Customer Service Specialist employed by Defendant Department of Labor and Employment Security [DLES] from April 15, 1985 until her resignation on May 15, 1998. Defendant DLES is a department of the State of Florida. Defendant Cathy Sipple was also a DLES employee and was Plaintiff's immediate supervisor at the times relevant to Plaintiff's complaint. Defendants Yolanda Dennis, Joyce McKenzie, Isabell Davis, Jerry Singletary, and Renee Benton were also DLES employees.
Plaintiff is an individual with a disability within the meaning of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. [ADA]. The vision in her right eye is no better than 20/300, and the vision in her left eye is worse. Her condition is not correctable to any degree with glasses. She is legally blind. Her condition limits her in the major life activities of seeing, walking, learning, caring for her personal needs, and working in a broad range of jobs in various classes. Additionally, Plaintiff has a record of having a disability and Defendants regarded her as having a disability.
Plaintiff can perform many of the essential functions of the position of Customer Service Specialist without any accommodation. With reasonable accommodation, she can perform the remaining essential functions of the position.
Plaintiff's immediate supervisor was a DLES employee named Johnnye Davis. Davis was charged with insubordination and filed a grievance. Plaintiff testified on Davis' behalf at the grievance hearing. Davis' grievance was upheld and the insubordination charge was overturned. Davis was later terminated from her employment. Davis appealed the decision. Plaintiff was among several employees who testified for Davis at her appeal hearing. The termination was overturned, and Davis was reinstated in the same position, but moved to another section. Plaintiff alleges that the content of her testimony at both hearings regarding Davis did not involve matters of her own personal interest, but matters of public concern, in that they related to the fair and honest implementation of DLES policies and the right to redress complaints through appeal procedures established by the DLES.
As a result of her testimony on behalf of Davis, the individual defendants retaliated against Plaintiff by discriminating against her on account of her disability and refusing to make reasonable accommodations for her disability. Specifically, Plaintiff alleges Defendants:
a. Failed to provide Janet Maggio with a 21" to 37" computer monitor. Thirty-seven inch monitors can display nearly the entire format of the form [the form that displays customer information] with 0.5" high bold text.
b. Failed to modify the mainframe application's display format [used by customer Service Specialists in the performance of their job] so that the most important information is grouped together, or stacked.
c. Failed to provide Janet Maggio with software and modifications to software so text appears on Janet Maggio's computer monitor as full-line text in 36-point font which is approximately 0.5" high.
d. Failed to provide documents on floppy disks for use by Janet Maggio.
e. Failed to provide Janet Maggio with word processing software such as WordPerfect, Word, and other widely-used applications in which to view text material that could be given her on floppy disks or sent by modem.
f. Failed to increase Attachmate Extral's default character size — this is a standard Extral feature.
g. Failed to use Windows 95 and its accessibility function to increase the size of screen objects without modifying applications.
h. Failed to provide Janet Maggio with a scanner by which she could convert information on paper to a computer file capable of being viewed in an enlarged font on her computer monitor.
i. Failed to provide Janet Maggio with training so she would be knowledgeable about computers and software used in her job.
j. Failed to allow Janet Maggio to make appropriate adjustments or modifications to policies regarding the means and methods of performing the essential functions of the employment position.
k. Failed to provide Janet Maggio with readers l. Failed to restructure the job of Customer Service Specialist without having Janet Maggio perform less work.
m. Failed to reassign Janet Maggio to a vacant position.
n. Failed to provide Janet Maggio with reasonable accommodations so she could attend training sessions provided to other Customer Service Specialists.
o. Failed to provide Janet Maggio with pink lights.
(Complaint ¶ 23). Additionally, the individual Defendants humiliated, intimidated, or laughed at Plaintiff because of her disability, and thereby created a hostile and abusive working environment.
Plaintiff filed a complaint with the Equal Employment Opportunity Commission [EEOC], which sent a right to sue letter on October 8, 1998. She filed the instant complaint on December 4, 1998. Count I is a claim against Defendants Sipple, Dennis, McKenzie, Davis, Singletary, and Benton [hereinafter "the individual Defendants"] under 42 U.S.C. § 1983, for retaliating against Plaintiff for exercising her First Amendment right to free speech. Count II is a claim against Defendant DLES for violation of Title I the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. [ADA]. Count III is a claim against Defendant DLES for violation of Title II of the ADA, 42 U.S.C. § 12131 et seq. Count IV is a claim against Defendant DLES for violations of the Rehabilitation Act, 29 U.S.C. § 701 et seq.
Defendants move for dismissal of Count I as against some or all Defendants on four grounds. Defendants argue that: (1) Plaintiff fails to state a claim, in that the facts alleged do not demonstrate that Plaintiff's speech was protected by the First Amendment; (2) Plaintiff fails to state a claim, in that the facts alleged do not establish a causal connection between the individuals named as Defendants and the specific acts which constitute a violation of Plaintiff's rights; (3) the claim cannot stand against the individual Defendants in so far as it alleges discrimination on the basis of disability; and (4) the claim cannot stand against the individual Defendants, because they have qualified immunity.
Plaintiff argues that the allegations of the complaint are sufficient to establish that the individual Defendants retaliated against her for the exercise of her First Amendment rights. To state a claim for:
retaliation for the exercise of free speech, the plaintiff must establish that (1) the expression addressed a matter of public concern; (2) the employee's first amendment rights outweigh the interests of the employer in preserving the efficiency of government services; and (3) the employer's conduct was a substantial or motivating factor in the [retaliatory action].
Martinez v. City of Opa-Locka, 971 F.2d 708, 712 (11th Cir.1992). Defendants argue that Plaintiff's complaint does not state a claim, because it does not establish that her speech related to matter of public concern or that the individual Defendants were the cause of any action taken against Plaintiff.
Plaintiff alleges that her testimony at Davis' grievance hearing and termination hearing "involve[d] matters of public concern in that they related to the fair and honest implementation of DLES' personnel policies and the rights to redress complaints through appeal procedures established by the DLES." Compl. ¶ 21. An employee's speech is of public concern when it relates to a "matter of political, social, or other concern to the community." Morgan v. Ford, 6 F.3d 750, 754 (11th Cir.1993). However, that First Amendment protection...
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...alleged deprivation is the plaintiff's rights created by the Rehabilitation Act and the ADA. See Maggio v. Florida Dept. of Labor and Employment, 56 F.Supp.2d 1370, 1377 (M.D.Fla.1999), and Wright v. City of Tampa, 998 F.Supp. 1398, 1403-04 (M.D.Fla.1998). The Court in Holbrook did not hold......
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